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FAMILY PROPERTY LAW

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When contracting marriage, spouses are free to regulate their property relation by choosing their regime of ownership. However, in lack of a property regime or in light of a different manifestation of will during the celebration of marriage, the legal communion of property regime will be applied. The latter states that the ownership of the goods purchased during marriage belongs to both spouses.

 

However, the Law allows spouses to modify over the course of their marriage their property regime through an agreement signed by public instrument in front of a Notary, which will then be noted in the margins of the marriage certificate.

 

The Di Nella Law Firm offers legal advice and assistance in these areas in particular:

The legal communion of ownership between spouses ends following a declaration of absence or of presumed death of one of the spouses, or following the dissolution or the cessation of civil effects of marriage, personal separation, legal separation of property, conventional change of the regime of ownership and lastly for one of the spouse’s bankruptcy. Once that the dissolution of the communion has been declared, the division is performed by splitting the assets and liabilities existing at the time of the dissolution in equal parts.

Also known as family business, it’s a firm where the spouse, relatives within third grade and relatives by marriage within second grade of kinship work together.  In order to enhance the commitment of all the parties involved, not only within the business but also within the family, the Italian law provided the institution of the family-owned company. This institution entails right to maintenance, right to profit-sharing and business’ gains, in proportion to the quantity and quality of work performed by each member of the family.

Both spouses can separately carry out acts of ordinary administration on common goods. Whenever acts of extraordinary administration are required, the two spouses must perform them jointly. In case that one of the spouses does not consent to those acts, the other spouse can address the Judge who, after taking into consideration the family needs, will order their fulfilment.

 

If one of the spouses cannot manage or poorly manages the family property, the other spouse can ask the Judge for their exclusion. Lastly, if one of the spouses carries out acts that require the consent of both, but the other spouse not validate them, the acts can be annulled if related to registered real estate or personal property. On the other hand, as regards to unconsented acts concerning unregistered personal property, the spouse is bound to restore the previous state of community or to pay the equivalent to the same community.

Ciascuno, entrambi i coniugi per atto pubblico o un terzo anche per testamento, possono scegliere di devolvere beni immobili, mobili registrati o titoli di credito esclusivamente ai bisogni della famiglia, vincolando gli stessi mediante la creazione di un fondo patrimoniale. Le cause che determinano la cessazione del fondo sono da ricondursi all’accordo dei coniugi, all’annullamento, allo scioglimento del matrimonio, alla morte di uno dei coniugi. Tuttavia, se vi sono figli minori, il fondo dura fino al compimento del 18esimo anno di età dell’ultimo nato.

Institution that has its roots in the Anglo-Saxon Law through which a subject can give rise to separated property with one or more assets, with the objective of one or more goals. The actors of this entity are three: the settlor, who is the one creating the trust; the trustee, the one to whom the settlor recognizes the power on single assets of the destined property with the goal of managing them; lastly, the beneficiary.

 

The institution is widely applied in Family Law, especially in separation procedures, in divorces relating to the management of common assets, and mostly after the implementation of the recent Law so-called “Dopo di noi” (“After us”), No 112/2016, that governs that the institute has to promote welfare, full social inclusion and autonomy of severe impaired persons.

Share of the deceased spouse’s pension redirected to the other spouse (even if previously separated and in the absence of alimony check) or to the civil partner. Moreover, the divorced spouse that is already receiving the alimony check on a regular basis, and that has not remarried and whose working relationship issuing the retirement is previous to the divorce decree can be the receiver of the survivor’s pension as well.